Rowan Laxton Speaks…

12 12 2010

Category; Rowan Laxton, Criminal Law, Anti-Semitism, Middle East

© Daily Telegraph

Professor Geoffrey Pullum has been speaking up for Rowan Laxton on his blog. It’s interesting to read the views on the subject of a distinguished American academic living in the UK especially as he’s had the benefit of a phone conversation with Laxton himself…
I’ve written quite extensively about this case – see here for the posts.

The Background

This is taken from the report in The Times of the first trial of Rowan Laxton and is the evidence of Gideon Falter, another gym user:

“I started to work out,” he said. “I heard someone shout, ‘F***ing Israelis, f***ing Jews’.

“I could hear that it came from above me. I wanted to see who shouted. I couldn’t see anyone who was particularly aggravated. Mr Laxton came downstairs to the lower part of the mezzanine and I spoke to him.”

Mr Falter claimed that Mr Laxton, head of the South Asia desk in the Foreign Office, admitted that it was him who had launched the tirade before allegedly adding: “It’s not racist. If I had my way, the international community would be sent in and if the Israelis got in the way, they would be blown off the face of the f***ing Earth.”

Another gym user witnessed both the initial comments and the subsequent exchange. Laxton was, eventually, charged with racially aggravated disorder. He was convicted of the offence in the magistrates’ court in September 2009. Laxton appealed the conviction. The case was reheard before a Crown Court judge and two lay magistrates at Southwark Crown Court in March 2010 where he was acquitted of the offence.

At the time of the incident Laxton was a senior diplomat, Head of the South Asia Desk at the Foreign Office. He has since returned to work at the Foreign Office, but they will not say in what capacity.

My view

For clarity, my view is that I am in no way sure that Laxton ought to have been charged with a criminal offence in this case.

The key thing is that someone holding the views that he expressed, and who expressed them in such a way that the police had to be called, ought not to be a senior diplomat for the UK.

I also think that the case is an excellent illustration of some of the issues in the English legal system, including the disaster casued by  thousands of new offences introduced by the Labour government which left office earlier this year.

Let me run through some of the points raised by Pullum and give a response:

The Charge

Professor Pullum states that Laxton was prosecuted under s.5 of the Public Order Act and that it counts as an aggravating factor if the offence had a racial or ethnic element. That’s not quite right – my original post on the subject got it slightly wrong in the same way (it’s now been corrected). That was the position before the introduction of the Crime and Disorder Act 1998 and in my view the position we should go back to. The offence as it now stands creates a separate offence for public disorder that is racially or religiously motivated. For a conviction it needs to be proven that a) there was disorder and b) there was a level of racial or religious motivation to the disorder. The difference is important because if that’s what they’re charged with and the prosecution can’t establish there was a racial/religious element to the offence then the defendant is acquitted – even if they are guilty of disorder. As they say…go figure.

False Allegation

Pullum says that the allegation that Laxton said ‘Fucking Jews’ may be a false allegation ‘as we shall see’. I’m not sure I spotted exactly where we saw, but at the Crown Court retrial it was held he either didn’t say it or didn’t think anyone would hear him.

Describing something as a ‘false allegation’ rings an alarm bell. The natural meaning is that someone has made it up, but I’m sure that Professor Pullum must have meant merely that Laxton didn’t say it. That sentence isn’t splitting hairs. It’s one thing for a defendant to be acquitted; quite another for someone to write that a witness to the incident that gave rise to the charge has made a false allegation. Especially when there are 2 witnesses.

It was not just gym user Gideon Falter who heard Laxton shout ‘fucking jews’. Another gym user heard it and witnessed the exchange between Falter and Laxton. That’s two independent witnesses; independent of Laxton and of each other. Both of whom turned up to both trials. After the first trial the District Judge said “It is hard to imagine the circumstances when saying ‘fucking Jews’ in a gym used by other people, and overheard by two strangers 20 ft away, could be considered reasonable.” Quite.

Pullum says that there followed ‘a calm exchange’ about the wrongs of the Gaza campaign. After the first trial Laxton’s barrister accepted he was in an agitated state which he put down to hearing earlier that day of the confirmation of his divorce. As I understand it, it was the racially aggravated part the second trial held against not the disorder part.

Jewish Lobby

Pullum reports that Laxton told him he expressed criticism of the Jewish lobby, by which he said he meant ultra-orthodox politicians within Israel not Jews in Britain. That is not a meaning of the phrase ‘Jewish lobby’ that I have ever heard anyone construe. It is certainly not a meaning that is in normal use.

Second Trial

There were some odd aspects to the second trial, where Laxton was acquitted. My understanding is that when the judgment was initially given there was no explanation by the Judge as to the basis on which the finding was made. The prosecutor had to ask for the court to be recalled to ask for one. He was chastised by the Judge who then retired and returned with reasons. That’s very irregular. Reasons ought to be given after a retrial in the Crown Court and judges ought not to show annoyance at being asked for them. And retiring before giving reasons brings the danger that those reasons will be reasons worked out after the event to justify a verdict rather than the actual reasons for that verdict based on the evidence heard.

There is another curious feature to that verdict. It appears legally incorrect. Even if it was not accepted that two independent witnesses heard him shout ‘fucking Jews‘ that still leaves the phrase ‘fucking Israelis‘ which is, in an of itself, enough to make out the second part of the charge (the aggravating element).

It also suggests that had Laxton been charged with the simple s.5 offence (disorder) he would have been convicted.

Pullum describes the racial aggravation part of the charge as ‘bogus‘ because he never said ‘fucking Jews‘. As a linguist he must be aware of the need to be precise in his language. As with the  phrase ‘false allegation’, saying as he does  that ‘the claim was bogus’ could be construed as meaning that it was made up by the witnesses. If you call an allegation ‘false‘ and ‘bogus‘ you ought to be very sure that it’s clear what you mean to suggest.

USA v UK

Professor Pullum is astonished by the lack of constitutional guarantees to free speech in the UK. He might well be right, but he should also recognise that the common law system has plenty of safeguards not codified in a written constitution, that freedom of expression has indeed been enacted in English law as Article 10 of the Human Rights Act and that all societies place limits on speech. That includes America where Justice Oliver Wendell Holmes jr’s opinion in the Schenk case (regarding the impermissibility of shouting ‘fire‘ in a theatre) might have been refined but still holds sway as a principle.

Finally, I have a request; since Professor Pullum has an open channel of communication with Rowan Laxton, please could he ask him what job he’s doing? The Foreign Office used to be proud of him and happy to publicise his role. Now we UK Citizens are not allowed to know what he does on behalf of our government.

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